A renowned motivational speaker in our circle conducts firewalks routinely as part of his events. Recently it was widely reported in the news media, some would argue overblown by the news media, that dozens were injured during such a walk at an event in Dallas. It may be that just five suffered burns and blisters enough to warrant medical treatment, and out of 7,000 attendees, that would make the risk minimal.
However, burn injuries are painful and debilitating and can produce high verdicts at trial. I am overall excited and supportive of the notion of a firewalk – it sparks the inner coach in me, that part of me always willing to push my limits. And yet, there is also that part of me that is wary of such activity. I know that it carries with it the very real risk of a lawsuit. Personal injury lawsuits have become common and having participants walk across a bed of hot coals does seem to be asking for a claim.
But it isn’t just fire walking. I have been asked to draft releases to address a variety of motivational activities, board breaking, glass walking, to name just a few. Not all states honor pre-injury releases, but those that do follow pretty much the same criteria in evaluating whether or not they are enforceable. Whether you are the host or an attendee, you should have some working knowledge of the laws regarding the enforceability of such a release.
The best way to understand the principles behind the enforceability of such releases is to look at actual cases; and, I found one that actually involves fire walking. Banker-Riskin v. The Holman Group, Nos. B143685, (Los Angeles County Super. Ct. No. LC045154), Oct. 3, 2001 is a fire-walking/pre-injury release case and its facts and outcome are instructive.
In August 1997, Ms. Banker-Riskin, a psychotherapist, participated in a seminar on neurolinguistic programming offered by Holman. At the conclusion of the seminar, participants and their guests were invited to attend a “Firewalking Seminar” held in the parking lot at Holman’s facility. After the fire walk Ms. Banker-Riskin reported that her feet were severely burned, and she sought treatment. It was found that she suffered permanent injuries that required long-term hospitalization and three skin grafts.
Prior to the fire walk, Ms. Banker-Riskin signed the following release:
PLEASE READ CAREFULLY. BY SIGNING THIS FORM, YOU ARE WAIVING ALL RIGHTS TO COMPENSATION IN CASE OF INJURY.
I understand that my participation in the FIREWALKING SEMINAR is completely voluntary and at my own risk. I also understand that no assurance guaranteeing my safety is being made and I agree to hold Ron Holman, Marcus Sola, The Holman Group and/or its entities, and/or sponsors, facilitators, organizers, and property owners completely harmless of all liability if I sustain any injuries. By signing this waiver, I agree to assume full responsibility for any injury or injuries, both physical and mental that I may sustain by participating in the FIREWALKING SEMINAR. I acknowledge that I have had the risks involved explained to me and I understand them and that there is a possibility I could receive burns or other injuries requiring medical attention and I release all others from any damages whatsoever.
Notwithstanding her execution of this release she sued anyway and attacked the release on several grounds. First, she tried to claim that the release was ineffective because the exculpatory provision did not explicitly use the term “negligence.” The court found that omission of the word negligence did not matter as long as the language used was a clear and unequivocal waiver of injuries that were reasonably within the contemplation of the parties at the time of signing the release. Here, the language clearly and unequivocally released burn injuries from fire walking. The court stated “when Banker-Riskin agreed to participate in the fire walk she understood the “inherent risk … [of] fire to flesh,” and understood she was “going to get burned” by “walk[ing] barefooted across a burning pit of fire,” and that this risk was “precisely what the release [was] intended to cover.”
So, the elements of an effective pre-injury release are: 1.) language that is clear and unequivocal; 2.) description of the injuries that may be associated with the activity; and 3.) the injuries that are being released are those within the intent of the parties relative to the activity.
- Having an event release is critical for any group activity.
- Just any old event release will not do. It must be specifically crafted to the activities to be held at the event. This means you should probably explain your event to counsel experienced in the coaching industry and have him or her draft a release tailored to that activity.
Reflecting back on the Banker-Riskin case described above and considering the reports of how the injuries occurred on the fire walk in Dallas, I am concerned that the general event releases that I have seen circulated at events may not be sufficient. Here is why.
1. Indemnity claims are not covered.
The reports of the recent Dallas event claimed that there may have been an operational issue during the fire walk. I read that some of the injuries are alleged to have occurred because the participants were stopping to take “selfies” or otherwise tweet about the event on social media. That the participant engaging in such activity is stalled on the coals because of the actions of another participant would not seem to be covered by the language of the Banker-Riskin release quoted above. (The language that says “I release all others” may not unambiguously refer to participants). So, the injured participant would sue the “selfie” taker who in turn would then sue the event host claiming that the operation of the fire walk exposed her to a lawsuit. In the law, this is called an indemnity claim. Indemnity claims are not covered in the general type of event releases I have seen or as described in the Banker-Riskin case.
2. Fraud in the inducement claims exists regardless of the release.
A second level of attack of a pre-injury release that was in the Banker-Riskin case was the claim that it was fraudulently induced. Although that sounds bad, fraud, you don’t need to be guilty of a crime to have your release eviscerated under that theory. In the Banker-Riskin case it happened this way. She contended that defendants knew several people had suffered serious burns during a prior fire walk in May 1997, but failed to disclose that fact to the participants in the fire walk in August. This theory of recovery would have helped her win despite the release, and the court had to consider the evidence presented on this issue. The reason Banker-Riskin lost on this issue was not anything to do with a legal issue or the release. The court found no evidence any defendant knew any one had suffered serious injury at the prior fire walk or that anyone communicated the seriousness of their injuries to any defendant requiring treatment at a burn center. Had Banker-Riskin had better evidence, she may have succeeded. So, the lesson there would be to disclose what you know in the release to mitigate against a fraudulent inducement claim.
As you can tell I am in favor of activities that push people through their limiting fears. And I am in favor of protecting my clients from the risk of lawsuits that can arise in our increasingly litigious society. I want you to have an impact on as many people as possible with the work that you do. A lawsuit could be an impediment if not an outright showstopper and I don’t want to see that happen. There are steps you can take to protect yourself and the intent of this was to put in your consciousness the very real risks that are present in our industry and to show you how your documents (and a good insurance policy) are critical to the livelihood of your business.